Servicemen have right to sue MoD, court rules
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Thousands of servicemen claiming compensation for injuries they suffered while serving with the armed forces have been told they can use the Human Rights Act to bring their cases to court.
The High Court ruling could help those with claims dating from before 1987 such as traumatised veterans of the Falklands war, the "Porton Down" servicemen who claim to have been injected with a cocktail of toxic drugs in the 1950s and those who were exposed to radiation during the Christmas Island nuclear tests.
Mr Justice Keith said yesterday that a bar on former members of the forces suing the Government for alleged negligence was incompatible with the Human Rights Act. The so-called Section 10 bar was passed by the Government in 1947. Although it was repealed in 1987, the new law did not help military personnel employed before that date.
The judge said that this amounted to a "restriction on the right of access to the courts" and a "disproportionate" interference with the former servicemen's human rights.
Yesterday's case was brought by Alan Matthews, 63, who claims to have been exposed to asbestos dust while working as an electrical engineer on board naval vessels between 1955 and 1968.
Mr Matthews, from Exeter, Devon, has developed serious lung conditions and claims he now lives in fear of developing mesothelioma, an incurable cancer of the lining of the lungs. Mr Justice Keith said it could not be denied that, subject to the Secretary of State for Defence issuing a certificate, Section 10 amounted to a "blanket ban" on servicemen injured before 1987 fighting their cases in the civil courts.
The compensation scheme operated by the Secretary of State was designed to do away with the heavy legal costs and fault-based system of the civil courts.
But the judge said it provided "very modest benefits when compared with the amounts which a severely injured claimant can expect to recover by litigation". Because of Section 10, Mr Matthews' right to sue had been taken away and replaced with a remedy that was "wholly inadequate".
He ruled that, on the face of it, section 10 breached Mr Matthews' fundamental human right to a fair hearing before an independent tribunal under Article 6 of the European Convention on Human Rights.
Mr Matthews' barrister, Robert Weir, said outside court that the ruling did not in itself change the law but would provide "powerful encouragement" for Parliament to bring the law into line with the convention. Even if Mr Matthews' claim were defeated in the English courts, it was likely to succeed in the European Court of Human Rights, he added.
The Ministry of Defence has said it will dispute Mr Matthews' claim both under Section 10 and "on its merits" if the case comes to trial.